News reports suggest that Uber has fired more than 20 staff, and is taking or considering disciplinary action against 95 other employees, after a widespread investigation into discrimination, sexual harassment and other wrongdoing within the business. The investigation was seemingly prompted by a blog by a former employee detailing the sexual harassment and discrimination she had allegedly encountered during her time at Uber. It led to the uncovering of over 200 allegations of wrongdoing, over half of which related to discrimination or harassment.
The embarrassing situation Uber faces has some key lessons for employers wishing to minimise the risk of discrimination and sexual harassment claims (for which compensation is unlimited):
- Always properly and thoroughly investigate complaints of discrimination, harassment or other unprofessional behaviour: It is alleged that female staff made repeated complaints about sexual harassment and discrimination, many of which related to the same manager. HR should have noted the pattern of behaviour (and arguably discriminatory culture) much sooner and tackled it head on;
- It is not a good idea to let staff get away with discrimination or harassment because they are ‘high performers’ or because it’s their ‘first offence’: It is alleged that HR failed to take the complaints seriously and repeatedly told the female staff that the manager in question had been given a stern telling off because this was his ‘first offence’ and he was a ‘high performer’. These are not valid excuses for discrimination or harassment;
- Don’t punish the complainant or threaten to dismiss them: It is alleged that a female staff member who had complained was asked to move teams because Uber would not be able to prevent the manager from giving her a negative appraisal if she continued to work in his team. The same employee was later allegedly threatened with dismissal for making a sexual harassment complaint to HR. In reality, an employer will be liable for any negative treatment or detriment faced by the complainant because they have made a complaint and it is unlawful to punish a complainant in this way. Crucially, dismissal motivated by a complaint about discrimination or harassment will be automatically unfair;
- Overlooking a culture of discrimination and harassment is bad for business: It is alleged that, during the relevant time, the proportion of female staff dropped from 25% to less than 6%. Many highly qualified female staff left the business taking their valuable skills and experience with them, in many cases to Uber’s competitors. Monitoring of retention rates and holding exit interviews should have flagged the problem up before all of this valuable talent was lost from the business; and
- A robust approach to equal opportunities can provide an employer with a defence: Discrimination complaints (including those for sexual or other unlawful harassment) can prove very expensive for employers because compensation is unlimited. An employer will have a defence to such claims if it can show that it took reasonable steps to prevent discrimination from occurring. What’s reasonable will differ from business to business, but an employment tribunal will ordinarily expect there to be an equal opportunities policy and regular equal opportunities training as a minimum.